Motion for rule nisi, in which is displayed much learning, ancient and
modern.
On the following day there was a great array of judicial talent and
judicial dignity sitting in what is called "Banco," not to be in any way
confounded with "Sancho;" the two words are totally distinct both as to
their meaning and etymology. In the centre of the Bench sat Mr. Justice
Doughty, one of the clearest heads perhaps that ever enveloped itself in
horsehair. On his right was Mr. Justice Pangloss, and on his left Mr.
Justice Technical.
Then arose from the Queen's Counsel row, Mr. Ricochet to apply for a rule
_nisi_ for a new trial in the cause of _Bumpkin_ v. _Snooks_ which was
tried yesterday before Mr. Justice Pangloss.
"Before me?" says Mr. Justice Pangloss.
"Yes, my lud," says Mr. Ricochet.
"Are you sure?" enquired the learned Judge, turning over his notes.
"O, quite, my lud."
"Ah!" says his lordship: "what do you say the name of the case was?"
"_Bumpkin_ against _Snooks_, my lud," says Mr. Ricochet, Q.C.
"Coots; what was it,--a Bill of Exchange?" asks his lordship.
"Snooks, my lud, Snooks;" says Mr. Ricochet, "with the greatest
deference, my lud, his name is spelt with an S."
Judge, still turning over his book from end to end calls to his clerk,
and addressing Mr. Ricochet, says: "When do you say it was tried, Mr.
Ricochet?"
"Yesterday, my lud; with great submission, my lud, I overheard your
ludship say Coots. Snooks, my lud."
Then all the Judges cried "Snooks!" as if it had been a puzzle or a
conundrum at a family Christmas party, and they had all guessed it at
once.
"Bring me the book for this term," said the Judge sharply to his clerk.
"What was the name of the plaintiff?" enquired Mr. Justice Doughty.
"Bumpkin, my lud," said Mr. Ricochet, "with great deference."
"Ah, Pumpkin, so it was," said the presiding Judge.
"With great submission, my lud, Bumpkin!"
"Eh?"
"Bumpkin, my lud;" and then all the Judges' cried "Bumpkin!" as pleased
as the followers of Columbus when they discovered America.
"Ah, here it is," said Mr. Justice Pangloss, passing his forefinger
slowly along the page; "the name of the case you refer to, Mr. Ricochet,
is _Bumpkin_ v. _Snooks_, not _Coots_ v. _Pumpkin_, and it was tried
before me and a special jury on the twenty-eighth of July of the present
year."
"Yes, my lud, with all submission."
"Why, that was yesterday," said Mr. Justice Pangloss. "Why did you not
say so; I was referring to last year's book."
"With all deference, my lud--"
"Never mind, never mind, Mr. Ricochet; let us get on."
"What do you move for?" asked Mr. Justice Doughty.
"A new trial, my lud."
"A new trial--yes--? Which way was the verdict, Mr. Ricochet?"
"Verdict for the plaintiff, my lud."
"And whom do you appear for?"
"I am for the defendant, my lud."
"O! you're for the defendant. Stop--let me have my note correct. I find
it always of great assistance when the rule comes on to be argued. I
don't say you're going to have a rule. I must know a little more of the
case before we grant a rule."
"If your ludship pleases."
I did not gather what his lordship intended to say when he made the
observations recorded, and can only regret that his lordship should have
broken off so abruptly.
"What ground do you move upon, Mr. Ricochet."
Mr. Ricochet said, "The usual grounds, my lud; that is to say, that the
verdict was against the weight of evidence."
"Stop a minute," said Mr. Justice Doughty; "let me have my note correct,
'against the weight of evidence,' Mr. Ricochet."
"Misdirection, my lud--with all respect to Mr. Justice Pangloss--and
wrongful admission of evidence."
"What was the action for?"
Now this was a question that no man living had been able to answer yet.
What was in the pleadings, that is, the pattern of the lawyer's net, was
visible enough; but as regards merits, I predict with the greatest
confidence, that no man will ever be able to discover what the action of
_Bumpkin_ versus _Snooks_ was about. But it speaks wonders for the
elasticity of our system of jurisprudence and the ingenuity of our
lawyers that such a case could be _invented_.
"Trespass," said Ricochet, "was one paragraph; then there was assault and
battery; breach of contract in not accepting a pig at the price agreed;
trespass in seizing the pig without paying for it; and then, my lud,
there were the usual money counts, as they used to be called, to which
the defendant pleaded, among other pleas, a right of way; an easement;
leave and license; a right to take the pig; that the pig was the property
of the defendant, and various other matters. Then, my lud, there was a
counter-claim for slander, for assault and battery; for loss of profit
which would have been made if the pig had been delivered according to
contract; breach of contract for the non-delivery of the pig."
Mr. Justice Doughty: "This was pig-iron, I suppose?"
The two other Judges fell back, shaking their sides with laughter; and
then forcibly thrust their hands against their hips which made their
tippets stick out very much, and gave them a dignified and imposing
appearance. Then, seeing the Judges laugh, all the bar laughed, and all
the ushers laughed, and all the public laughed. The mistake, however,
was a very easy one to fall into, and when Mr. Justice Doughty, who was
an exceedingly good-tempered man, saw the mistake he had made, he laughed
as much as any man, and even caused greater laughter still by
good-humouredly and wittily observing that he supposed somebody must be a
pigheaded man. To which Mr. Ricochet laughingly replied, that he
believed the plaintiff was a very pigheaded man.
"Now," said Mr. Justice Pangloss, "have you considered what Vinnius in
his 'Commentary on Urban Servitudes' says."
Mr. Ricochet said, "Hem!" and that was the very best answer he could make
to the learned Pangloss, and if he only continues to answer in that
manner he'll get any rule he likes to apply for--(no, not the Rule of
Three, perhaps).
So Mr. Justice Pangloss went on:
"There are, as Gale says, 'two classes of easements distinctly recognised
by the Civil Law--'"
"Hem!" said Ricochet.
"'Under the head of "Urban Servitudes--'"
Ricochet: "Hem!"
"'That a man,' (continued Mr. Justice Pangloss), 'shall receive upon his
house or land the _flumen_ or _stillicidium_ of his neighbour--'"
"Hem!" coughed Mr. Ricochet, in a very high key; I verily believe in
imitation of that wonderful comedian, J. C. Clarke.
Then Mr. Justice Pangloss proceeded, to the admiration of the whole Bar:
"'The difference,' says Vinnius, in his Commentary on this passage,
between the _flumen_ and the _stillicidium_ is this--the latter is the
rain falling from the roof by drops (_guttatim et stillatim_).'"
"Hem!" from the whole Bar.
"'The _flumen_'--"
"I think," said Mr. Justice Doughty, "you are entitled to a rule on that
point, Mr. Ricochet."
Then Mr. Justice Technical whispered, and I heard Mr. Justice Doughty say
the principle was the same, although there might be some difference of
opinion about the facts, which could be argued hereafter. "But what is
the misreception of evidence, Mr. Ricochet? I don't quite see that."
"With all submission, my lud, evidence was admitted of what the solicitor
for the defendant said to the plaintiff."
"Wait a minute, let me see how that stands," said Mr. Justice Doughty;
"the solicitor for the defendant said something to the plaintiff, I don't
quite follow that."
Mr. Justice Technical observed that it was quite clear that what is said
by the solicitor of one party to the solicitor of another party is not
evidence.
"O," said the learned Pangloss, "so far back as the time of Justinian it
was laid down--"
"And that being so," said the eminent Chancery Judge, Mr. Justice
Technical, "I should go so far as to say, that what the solicitor of one
party says to the client stands upon the same footing."
"Precisely," said Mr. Ricochet
"I think you are entitled to a rule on that point," remarked Mr. Justice
Doughty, "although my brother Pangloss seems to entertain some doubt as
to whether there was any such evidence."
"O, my lud, with all submission, with the greatest possible deference and
respect to the learned Judge, I assure your ludship that it was so, for I
have a note of it."
"I was about to say," continued Mr. Justice Doughty, "as my brother
Pangloss says, it may have been given while he was considering a point in
Justinian. What is the misdirection?"
"O, my lud, the misdirection was, I venture respectfully and
deferentially to submit, and with the utmost deference to the learned
Judge, in his lordship's telling the jury that if they found that the
right of way which the defendant set up in his answer to the trespass, or
easement--but perhaps, my lud, I had better read from the short-hand
writer's notes of his ludship's summing-up. This is it, my lud, his
ludship said: 'In an action for stopping of his _ancient_ lights --."
"What!" said Mr. Justice Doughty, "_did he black the plaintiff's eyes_,
then?"
"No, my lud," said Mr. Ricochet, "that was never alleged or suggested."
"I only used it by way of illustration," said Mr. Justice Pangloss.
Then their lordships consulted together, and after about three-quarters
of an hour's conversation the learned Mr. Justice Doughty said:
"You can take a rule, Mr. Ricochet."
"On all points, my lud, if your ludships please."
"It will be more satisfactory," said his lordship, "and then we shall see
what there is in it. At present, I must confess, I don't understand
anything about it."
And I saw that what there was really in it was very much like what there
is in a kaleidoscope, odds and ends, which form all sorts of combinations
when you twist and turn them about in the dark tube of a "legal
argument." And so poor Bumpkin was deprived of the fruit of his victory.
Truly the law is very expeditious. Before Bumpkin had got home with the
cheerful intelligence that he had won, the wind had changed and was
setting in fearfully from the north-east. Juries may find as many facts
as they like, but the Court applies the law to them; and law is like
gunpowder in its operation upon them,--twists them out of all
recognisable shape. It is very difficult in a Court of law to get over
"_guttatims_" and "_stillatims_," even in an action for the price of a
pig.